War Powers Resolution: A Brief Summary of Pro and Con Arguments

June 5, 1996
96-494

The War Powers Resolution, Public Law 93-148, was enacted by Congress over the veto of
President
Nixon on November 7, 1973. Through more than twenty-two years of experience, the resolution has
remained a focus of controversy on the war powers of the President and Congress under the
Constitution. (1) Major areas of controversy include the constitutionality of
some provisions, the proper
roles for the President and Congress in entering armed conflicts, the effect on U.S. military
operations, and the effectiveness of the resolution in achieving its purpose of assuring that the
collective judgment of the Congress and the President apply to the introduction of U.S. Armed Forces
into hostilities. In the post-Cold War era, the relationship of the War Powers Resolution to U.S.
participation in military/peacekeeping activities under the auspices of the United Nations, as well as
peacekeeping operations in general have become an issue. This report lists major arguments for and
against the resolution. This report will not be updated.
1. For additional information, see: The War Powers
Resolution: Twenty-Two Years of Experience. May 24,
1996. CRS Report 96-476 F. 58 p.; War Powers Resolution: Presidential Compliance. CRS Issue Brief IB81050; updated periodically. War Powers: Bibliography-in-Brief, 1988-1992. CRS Report 93-675
L.

96-494 F
June 5, 1996
CRS Report for Congress
Received through the CRS Web
War Powers Resolution:
A Brief Summary of Pro and Con Arguments
(name redacted)
Specialist in National Defense
Foreign Affairs and National Defense Division
Summary
The War Powers Resolution, Public Law 93-148, was enacted by Congress over
the veto of President Nixon on November 7, 1973. Through more than twenty-two years
of experience, the resolution has remained a focus of controversy on the war powers of
the President and Congress under the Constitution.1 Major areas of controversy include
the constitutionality of some provisions, the proper roles for the President and Congress
in entering armed conflicts, the effect on U.S. military operations, and the effectiveness
of the resolution in achieving its purpose of assuring that the collective judgment of the
Congress and the President apply to the introduction of U.S. Armed Forces into
hostilities. In the post-Cold War era, the relationship of the War Powers Resolution to
U.S. participation in military/peacekeeping activities under the auspices of the United
Nations, as well as peacekeeping operations in general have become an issue. This
report lists major arguments for and against the resolution. This report will not be
updated.
PRO
CON
The War Powers Resolution
seeks to carry out Article I, Section 8
of the Constitution which grants
Congress the power to declare war and
to make all laws necessary for carrying
into execution the powers vested by
the Constitution in the government.
The founding fathers gave Congress
The War Powers Resolution is
unconstitutional because it impedes
the ability of the President to carry out
his function as Commander in Chief
granted by Article II, Section 2 of the
Constitution. The War Powers
Resolution attempts to take away
authorities that the President has
1
For additional information, see: The War Powers Resolution: Twenty-Two Years of
Experience. May 24, 1996. CRS Report 96-476 F. 58 p.; War Powers Resolution: Presidential
Compliance. CRS Issue Brief IB81050; updated periodically. War Powers: Bibliography-inBrief, 1988-1992. CRS Report 93-675 L.
Congressional Research Service ˜ The Library of Congress
CRS-2
the power to declare war so that the
President alone could not commit the
Nation to war.
The War Powers Resolution is
necessary to reverse the trend since
World War II for Presidents to send
armed forces into conflicts abroad
without congressional authorization.
exercised for 200 years. Throughout
American history Presidents have used
U.S. forces abroad, without a
declaration of war or other
congressional authorization, when
necessary to protect American citizens
or defend U.S. interests.
The War Powers Resolution
permits adequate flexibility by
recognizing the President's right to
respond to a national emergency
created by attack upon the United
States, its territories, or its armed
forces.
The War Powers Resolution
impedes the President's flexibility to
respond quickly and decisively to
world events by providing for
congressional consultation and
a u t h o r i z a t i o n f o r s u s t ai n e d
deployments into hostilities. It
encourages foreign adversaries to
continue their activities until U.S.
mandatory withdrawal deadlines are
reached.
The War Powers Resolution has
been effective in encouraging
Presidents to consider the opinion of
Congress prior to engaging in conflict
and in some instances in restraining
the size or duration of military
commitments.
Presidents have
reported consistent with the War
Powers Resolution on more than sixty
occasions.
The War Powers Resolution has
been ineffective because it has not
prevented Presidents from undertaking
military actions without congressional
approval and it has not brought about
consultation prior to decisions. Except
in the Mayaguez incident, Presidents
have never reported under section
4(a)(1) that they have introduced
forces into hostilities or imminent
hostilities.
Collective judgment and the
support of Congress and the President
are essential to effective conduct of
wars, and the War Powers Resolution
seeks to assure that both branches
share in making the decision from the
beginning.
The War Powers Resolution
hinders effective conduct of military
operations abroad. The resolution is
not necessary because Congress has
ample opportunity through resolutions,
authorizing legi slation, and
appropriations, to shape decisions on
the use of armed forces.
The War Powers Resolution
provides a framework of procedures to
obtain congressional advice and
authorization for military actions
abroad in a timely fashion.
The War Powers Resolution
diverts congressional debate from the
merits of specific courses of action
and focuses attention on prerogatives
and procedures.
The power of the purse provides
CRS-3
The War Powers Resolution
provides a method for Congress to
bring about the end of any
commitment of forces into hostilities
or imminent hostilities.
Congress opportunity to halt any
military action it disapproves so the
War Powers Resolution is not
necessary.
The War Powers Resolution
provides a time limit for using forces
without first obtaining congressional
authorization, and this time limit
provides important leverage for
Congress. After the President reports
under the War Powers Resolution, or
should have reported, that he has
introduced forces into hostilities or
imminent hostilities, the forces must
be withdrawn within 60 to 90 days
unless Congress declares war or
authorizes the forces to remain.
It is unconstitutional to require
that forces be withdrawn within 60 to
90 days because of congressional
inaction. The time limit is arbitrary
and inflexible and assures adversaries
that if they wait out the time limit,
U.S. forces will be withdrawn. Some
Members object that the time limit has
in practice given the President 60 free
days in which he can use forces
without congressional authorization.
Section 5(c) of the War Powers
Resolution provides that at any time
Congress by concurrent resolution can
direct the President to withdraw forces
from hostilities.
This is not a
legislative veto because there is no
delegation of authority as in other
legislative vetoes (rulemaking,
suspension of deportation, etc.), where
Congress placed a condition on
delegated authority. If Members want
to act by joint resolution, that
procedure already exists in Section
1013 of P.L. 98-164, signed
November 22, 1983.
The War Powers Resolution is
unconstitutional because Section 5(c)
is a legislative veto, providing for
action to withdraw forces from
hostilities by a concurrent resolution
of Congress. A concurrent resolution
does not require presentation to the
President for signature, and thus such
a measure does not go through the full
legislative process. In INS v. Chadha
and related cases, the Supreme Court
d e c l a r e d l e gi s l a t i v e v e t o e s
unconstitutional.
If the War Powers Resolution has
been less effective than its supporters
originally hoped, it is because
Presidents have not complied with all
its provisions, or because Congress
has not had the will to take the
decisions necessary to enforce it. If
either the President or Congress would
observe the legislation, the resolution
could be effective in assuring that both
branches supported military action.
Laws such as the War Powers
Resolution are attempts by Congress
to micromanage foreign policy and to
force consultation and cooperation.
Such cooperation cannot be mandated
by legal line-drawing but must be
based on recognition of shared
responsibilities, attitudes of trust, and
mutual goals.
CRS-4
The War Powers Resolution is
essentially sound and any necessary
steps to adapt its functioning to the
new post-Cold War world could be
taken through minor amendments or
without amending the resolution itself.
Such measures might include
establishing a standing consultative
group or specifying congressional
procedures in the United Nations
Participation Act.
The War Powers Resolution is a
vestige of the Vietnam War era and
not suited to the new world situation
in which U.S. involvement in
hostilities may often be part of a
multilateral effort. The post-Cold War
era requires greater flexibility for the
President to make rapid decisions that
may entail the use of forces in new
and varied ways.
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